Responsibility of states for damage caused in their territory to the person or property of foreigners

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Monograph

Identifikator:: 1831665921

URN:: urn:nbn:de:zbw-retromon-222025

Document type:: Monograph

Author:: Maúrtua, Víctor M.; Scott, James Brown http://d-nb.info/gnd/117654191

Title:: Responsibility of states for damage caused in their territory to the person or property of foreigners

Place of publication:: New York

Publisher:: Oxford Univ. Press

Year of publication:: 1930

Scope:: V, 67 S.

Digitisation:: 2022

Collection:: Economics Books

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Document type:: Monograph

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Title:: X. Self-defence, necessity and rescission

Collection:: Economics Books

SELF-DEFENSE, NECESSITY AND RESCISSION 63 salutary effect upon the development of the principle along the lines sug- gested. (b) As regards cases of necessity, the Preparatory Committee has pro- pounded a general formula that refers only to the concrete case of repudia- tion of the contractual obligations of the State. On general principles, neces- sity does not justify repudiation, nor does it come within the scope of the Law of Nations. It is a situation wherein the interests of the first party, protected by the law, are in actual danger and there is no other solution but to violate the rights of the second party under juridical sanction. It differs materially from self-defense in that—as stated by Carrara—self-defense is a “reaction”, whereas, necessity resolves itself into an “action”. This action can be defined in the municipal law, inasmuch as the measure of damages can be practically determined. Its application to international relations would be impractical and, under certain circumstances, it would tend to im- pair the fundamental rights of innocent States. “Tt was thus with good reason”—the eminent Mr. Charles De Visscher comments—*“that the American Institute of International Law formulated in 1916 the following fundamental rule that embraces a solemn protest against the doctrine of necessity: “ “Every nation has the right to exist, and to protect and to conserve its existence; but this right neither implies the right nor justifies the act of the State to protect itself or to conserve its existence by the com- mission of unlawful acts against innocent and unoffending states.’ “All the terms of this pronouncement are worthy of consideration: it recognizes the right of conservation within the limits imposed by due respect for the rights of others, condemns the doctrine of necessity that attempts to exceed those limits, and finally, it reserves the cases of justifi- cation arising from self-defense and from reprisals.” This same formula was proposed and discussed as one of the declarations of the rights and duties of nations at the Sixth International Conference of American States held at Habana in 1928. The authorities cite a number of cases in which self-defense and necessity have been pleaded in order to justify or excuse international conduct. Among others, the following cases have been cited: the Caroline, the Virginius, the American expeditions against the Villa forces in 1916 and 1919, the recipro- cal violation of boundaries between Greece and Bulgaria in 1919, etc. In the case of the Caroline, Mr. Webster, Secretary of State of the United States. thus expounded the doctrine of self-defense: “Undoubtedly it is just’—he stated in his note of August 6, 1842, to the British Pleninotentiary. Lord Ashburton—*“that while it is admitted 1 Von Liszt, Treatise on Penal Law, Vol. 11, p. 341.

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